SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
MARCH 14, 2000
Date of Report
(Date of Earliest Event Reported)
THE BILLIARD CHANNEL INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 0-30272 95-4738432
--------------- ----------- --------------
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
#104 - 20177 54A AVENUE, LANGLEY, B.C. V3A 3W6
(Address of principal executive offices)
(604) 532-2090
(Registrant's telephone number)
ENTERPRISE CONSOLIDATION CORPORATION
860 VIA DE LA PAZ, SUITE E-1, PACIFIC PALISADES, CA 90272
(Former name and former address)
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ITEM 1. CHANGE IN CONTROL OF REGISTRANT
-and-
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
(a) On March 14, 2000, Enterprise Consolidation Corporation. ("Enterprise"
or the "Registrant"), a Delaware Corporation, entered into an Agreement and Plan
of Merger (the "Merger Agreement") with Stuart Communications Corporation which
holds 100% ownership of The Billiard Channel ("Stuart"), a Nevada corporation.
Pursuant to the terms of the Merger Agreement, and subject to the conditions set
forth therein (including approval of the transactions by the stockholders),
Stuart was merged with and into Enterprise (the "Merger"). At the effective time
of the Merger, the separate existence of Stuart ceased and was merged with
Enterprise. The effective date of the Merger was March 14, 2000. Immediately
upon completion of the merger, Enterprise filed with the Delaware Secretary of
State to change its name to The Billiard Channel Inc.
As of March 14, 2000, 13,000,000 shares of Registrant's common stock were issued
and outstanding. 6,000,000 common shares are held by the shareholders of Stuart
and 7,000,000 common shares are held by the existing shareholders of Enterprise.
As of March 14, 2000 there are 364 shareholders.
The Merger Agreement was adopted by the unanimous consent of the Board of
Directors and shareholders of Registrant on March 14, 2000. The Merger Agreement
was adopted by the unanimous consent of the Board of Directors and shareholders
of Stuart on March 14, 2000.
The sole consideration transferred by the Stuart Shareholders for shares of
Registrant's common stock was the exchange of their respective Stuart shares.
A copy of the Merger Agreement is filed as an exhibit to this Form 8-K and is
incorporated herein in its entirety. The description of each exhibit contained
in this report is modified by such reference.
On the effective date of the Merger, the officers and directors of Enterprise
resigned and new officers and directors of Registrant were appointed. (See
"Management" below.)
Registrant intends to provide new cable programming and an Internet web site in
a coordinated, cross business Television/Internet media strategy targeting
billiard players around the world. "The Billiard Channel" will provide Billiard
Tournament programming to the Cable and Sports Network Television Companies and
also air the world's greatest professional players on "Internet/TV/Radio" at The
Billiard Channel.com, 24 hours a day. The Billiard Channel will also sell
television programming, to North American and overseas networks to bring
Billiards' many different disciplines to cue-sport fans around the globe. The
company will also sell DVD's, Cassettes, USA and ABP Billiard Tour clothing and
memberships to billiard fans throughout the world via the Internet at The
Billiard Channel.com.
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The Billiard Channel is positioning its future to become a major participant in
the fast growing "Sports Cable and Internet" industry. Registrant expects to
increase its revenues significantly over the next three years through the
development and marketing of International Billiard coverage by providing
programming, available to the home satellite dish market, the cable television
market, to the direct satellite television providers and the "on demand"
Internet billiards fan.
Registrant intends to relocate its executive and operations offices to Las
Vegas, Nevada in the near future.
(b) The following table contains information following the merger regarding the
shareholdings of Registrant's newly-appointed directors and executive officers
and those persons or entities who have the right to vote or direct the vote or
beneficially own more than 5% of the Registrant's common stock or rights to
acquire common stock:
Percent Of
Amount of Common Common Stock
Stock Beneficially Beneficially Owned
Owned or Right to Or Right to
Name Title Direct vote Direct Vote (1)
- ------------- ------- ----------------- ------------------
Jack Stuart President & Director 500,000 3.85%
Russell Stuart Vice Pres & Director 4,900,000 37.69%
Whitney Stuart Vice Pres & Director 250,000 1.92%
Karen Scott Secretary/Treasurer
& Director 250,000 1.92%
J. R. Calvert Director 100,000 .77%
- ------------------------
(1) Based upon 13,000,000 outstanding shares of common stock.
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Management
- ----------
Upon completion of the merger, the officers and directors of Stuart became the
officers and directors of Registrant. The management of Registrant consists of:
Name Position
- ---- --------
Jack Stuart Chairman; President
Russell Stuart Director; Vice President
Whitney Stuart Director; Vice President
Karen Scott Director; Secretary/Treasurer
Sherrill Calvert Director
JACK STUART, is Chairman and CEO of Registrant. Mr. Stuart has an extensive
background in business development with 43 years experience as an owner of the
following companies where he served as Chairman and CEO: The Albion Press
Publishing Ltd. from 1960 to 1973, NTTI Management Ltd. from 1976 to 1997 and
Evolution Media Corp. from 1994 to 1997. He is currently Chairman and CEO of
Stuart Communications Corp., a director of USA Billiards Inc. and The ABP Tour
Inc. of Las Vegas Nevada,(men's professional nine ball tour). He has also served
as CEO and Chairman of Trumark Resource Corp, a publicly listed stock exchange
company from 1982 to 1991. Mr. Stuart, an avid Pool player, was a sponsor for
the Canadian Snooker Championship which was held in Vancouver, British Columbia
in 1995. Mr. Stuart is also Chairman of the Management Committee for the
company.
RUSSELL STUART, is a Director and Vice President of Registrant. He is currently
President of USA Billiards Inc. and The ABP Tour Inc. of Las Vegas Nevada where
he has organized the newly formed professional billiards challenger tour across
the United states from Miami to California. For the past five years Russell has
developed superior computer/Internet skills and entertainment production
experience at EMC Media Corp. and Stuart Communications Corp. For the past year
he has also filmed the RJ Reynolds Camel Professional Nine Ball Tour across the
United States providing interview and tournament programming for The Billiard
Channel. Mr. Stuart is a tireless advocate of Billiards and has the business and
organizational skills to develop programming for The Billiard Channel. Mr.
Stuart is also a member of the Management Committee of the company.
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WHITNEY JOHN STUART is a Director and Vice President of Registrant. He has been
involved in the music and television industry for the past 15 years. He has
experience in production and content development for music and video as well as
new internet ventures. For the past year he has filmed the RJ Reynolds Camel
Professional Nine Ball Tour across the United States providing interview and
tournament programming for The Billiard Channel.
Whitney John Stuart is President of SMC, a media production company from 1995 to
2000, where he has produced live concerts on the west coast and is presently
executive producer of Bandfest 2000. He will be responsible for overseeing
content creation and development of programming for The Billiard Channel and its
various divisions. Mr. Stuart is also a member of the Management Committee of
the company.
KAREN E. SCOTT is a Director and Secretary-Treasurer of Registrant. Ms. Scott is
currently President of Hartlin Management Services, a Management Consulting firm
from 1982 to 2000, and has been associated with The Stuart Group of Companies
for eighteen years. Ms. Scott provides financial data processing and reporting
preparation including office management and is a member of the management
committee.
SHERRILL ("J.R.") CALVERT is a Director of Registrant. Mr. Calvert is the US
Distributor and Player Representative for Falcon Cues from 1996 to 2000. He is
responsible for consulting on product design and implementing strategy for the
US market. Previously, Mr. Calvert was responsible for setting up manufacturing
and International sales for Paul Motley Cues and has participated in the design
of many billiard rooms in the US. From 1994 to 1995 he served as Director,
Secretary and tour coordinator of the Professional Billiard Association in the
United States.
J.R. is a graduate from the University of Pittsburgh with Bachelor of Science,
Mechanical Engineering and Manufacturing Engineering Degrees. He has played on
the Men's Pro Billiard Tour since 1990 and is presently ranked in the top fifty
in the world. Mr. Calvert is also a member of the Management Committee of the
company.
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USE OF FORWARD-LOOKING STATEMENTS
This current report contains "forward-looking statements." Such statements are
found in Item 1 and Item 2 of this report. Prospective Investors are cautioned
that the assumptions upon which such statements are based cannot be guaranteed
by the Company to occur in the future or that the overall success of the Company
might be materially adversely affected should such bases (or some of them) not
occur.
RISK FACTORS RELATED TO THE MARKET FOR REGISTRANT'S SECURITIES
NO CURRENT TRADING MARKET FOR THE COMPANY'S SECURITIES. There is currently no
established public trading market for the securities of the Company. The Company
intends to apply for admission to quotation of its securities on the NASD OTC
Bulletin Board and, if and when qualified, it intends to apply for admission to
quotation on the NASDAQ SmallCap Market. There can be no assurance that an
active or regular trading market for the common stock will develop or that, if
developed, will be sustained. Various factors, such as the Company's operating
results, changes in laws, rules or regulations, general market fluctuations,
changes in financial estimates by securities analysts and other factors may have
a significant impact on the market price of the Company's securities. The market
price for the securities of public companies often experience wide fluctuations
which are not necessarily related to the operating performance of such public
companies such as high interest rates or impact of overseas markets.
PENNY STOCK REGULATION. Upon commencement of trading in the Company's stock, if
such occurs (of which there can be no assurance) the Company's common stock may
be deemed a penny stock. Penny stocks generally are equity securities with a
price of less than $5.00 per share other than securities registered on certain
national securities exchanges or quoted on the NASDAQ Stock Market, provided
that current price and volume information with respect to transactions in such
securities is provided by the exchange or system. The Company's securities may
be subject to "penny stock rules" that impose additional sales practice
requirements on broker-dealers who sell such securities to persons other than
established customers and accredited investors (generally those with assets in
excess of $1,000,000 or annual income exceeding $200,000 or $300,000 together
with their spouse). For transactions covered by these rules, the broker-dealer
must make a special suitability determination for the purchase of such
securities and have received the purchaser's written consent to the transaction
prior to the purchase. Additionally, for any transaction involving a penny
stock, unless exempt, the "penny stock rules" require the delivery, prior to the
transaction, of a disclosure schedule prescribed by the Commission relating to
the penny stock market. The broker-dealer also must disclose the commissions
payable to both the broker-dealer and the registered representative and current
quotations for the securities. Finally, monthly statement must be sent
disclosing recent price information on the limited market in penny stocks.
Consequently, the "penny stock rules" may restrict the ability of broker-dealers
to sell the Company's securities. The foregoing required penny stock
restrictions will not apply to the Company's securities if such securities
maintain a market price of $5.00 or greater. There can be no assurance that the
price of the Company's securities will reach or maintain such a level.
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ITEM 5. OTHER EVENTS
On March 14, 2000, Enterprise received and accepted the resignations of
George Todt as Director and Chief Executive Officer, Timothy Hipsher as
President, James Walters as Vice President, Treasurer and Director and Mary
Elizabeth Rowbottom as Secretary. On the same date, the officers and directors
of Stuart were designated to serve in their same capacities for the Registrant
until the next annual meeting of stockholders and until their respective
successors are elected and qualified or until their prior resignation or
termination.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The financial statements required hereunder will be filed within 60 days
after the date that this Report is required to be filed.
(c) Exhibits.
There is attached hereto the following exhibits:
Exhibit
No. Description
- ------- -----------
2.1 Agreement and Plan of Merger by and between Enterprise
Consolidation Corporation and Stuart Communications Corporation
dated March 14, 2000.
3.(i) Certificate of Incorporation of Registrant (Amended and Restated)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE BILLIARD CHANNEL INC.
By /s/ Jack Stuart
-------------------
President
Date: March 21, 2000
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EXHIBIT INDEX
Exhibit
No. Description
- ------- -----------
2.1 Agreement and Plan of Merger by and between Enterprise
Consolidation Corporation and Stuart Communications Corporation
dated March 14, 2000.
3.(i) Certificate of Incorporation of Registrant (Amended and Restated)
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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER ("this Agreement") made and entered into this 3rd
day of March, 2000, by and between ENTERPRISE CONSOLIDATION CORPORATION., herein
sometimes referred to as "Enterprise" or the "Surviving Corporation", a Delaware
corporation, and STUART COMMUNICATIONS CORPORATION which holds 100% ownership of
THE BILLIARD CHANNEL. COM, herein sometimes referred to as The Billiard Channel
or The Billiard Channel.com or the "Disappearing Corporation", a Nevada
corporation.
WHEREAS:
A. Enterprise and Stuart Communications Corp./The Billiard Channel.com
sometimes referred to as the "Constituent Corporations"), desire to
merger pursuant to the applicable statutes of the State of Delaware in
accordance with the terms and conditions hereinafter set forth. The
Constituent Corporations also desire that this be a reorganization
free of tax and be governed by Section 368 (a) (1) (A) of the Internal
Revenue Code.
B. Enterprise is duly organized and existing under the General
Corporation Law of the State of Delaware, having been incorporated on
September 12, 1998.
C. Stuart Communications Corporation is duly organized and existing under
the laws of the State of Nevada, having been incorporated on July 6,
1999.
D. Enterprise has an authorized capital stock consisting of 8,000,000
shares of preferred stock of the par value of $0.001 per share (the
"Enterprise Preferred"), of which none of the shares have been issued,
and 100,000,000 shares of common stock of the par value of $0.001 per
share (the "Enterprise Stock"), of which 7,000,000 shares are now
issued and outstanding. (prior to the merger, Enterprise's shares are
only 7 million. After the merger, the total amount issued and
outstanding will be 13 million).
E. Stuart Communications Corporation has an authorized capital stock
consisting of 75,000,000 shares of common stock of the par value of $
0.001 per share ("Stuart Communications corp./The Billiard Channel
stock"), of which 6,000,000are now issued and outstanding
NOW, THEREFORE, the Constituent Corporations do hereby agree each with the other
that Stuart Communications Corporation/The Billiard Channel be merged into
Enterprise as the Surviving Corporation, pursuant to the applicable statutes of
the State of Delaware, subject to the following terms and conditions: A name
change will then be effective as "The Billiard Channel Inc.". There will be
13,000,000 shares of common stock, par value $0.001, issued and outstanding
following the merger's execution.
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1. CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION. On the Merger
Date, as that term is defined in Paragraph 18 below, the Certificate of
Incorporation of Enterprise, and its corresponding amended and restated
certificates of incorporation shall be the Articles of Incorporation of the
Surviving Corporation.
2. NAME OF THE SURVIVING CORPORATION. On the Merger Date, the name of the
Surviving Corporation shall be Stuart Communications Corporation. A name change
will then be effective as The Billiard Channel Inc.
3. BYLAWS OF THE SURVIVING CORPORATION: The Bylaws of Enterprise in force
on the Merger Date shall be the Bylaws of the Surviving Corporation until
altered, amended or repealed.
4. DIRECTORS OF THE SURVIVING CORPORATION: Until changed, the number of
persons who shall constitute the Board of Directors of the Surviving Corporation
shall be five.
5. The names and address of the persons who shall be directors of the
Surviving Corporation on and after the Merger Date are:
Name Address
- ---- -------
Jack Stuart #2646 - 1979 Marine Drive
North Vancouver, British Columbia, Canada V7P 3G2
Russell Stuart 8013 Pottery Creek Drive
Las Vegas, Nevada, 89128
Whitney Stuart #2646 - 1979 Marine Drive
North Vancouver, British Columbia V7P 3G2
Karen Scott #104 - 20177 - 54A Ave.,
Langley, British Columbia, V3A 3W6
Sherrill Calvert 207 N. Second Street
Jeannette, PA, 15644
Each of the aforesaid shall hold such office until the Enterprise annual
meeting of the shareholders of the Surviving Corporation and until their
respective successors shall have been duly elected and qualified.
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6. OFFICERS OF THE SURVIVING CORPORATION. On the Merger Date, the following
persons shall be the officers of the Surviving Corporation , whose names and
address are set forth below:
Name Office Address
- -------------- ------ -------
Jack Stuart President #2646 - 1979 Marine Drive
North Vancouver, British Columbia, V7P 3G2
Russell Stuart Vice President 8013 Pottery Creek Drive
Las Vegas, Nevada 89128
Whitney Stuart Vice President #2646 - 1979 Marine Drive
North Vancouver, British Columbia, V7P 3G2
Karen Scott Secretary/ #104 - 20177 - 54A Ave.,
Treasurer Langley, British Columbia, V3A 3W6
Each of the aforesaid shall hold the office set forth after his or her
respective name until a successor shall be elected or appointed in the manner
provided by the Surviving Corporation's Bylaws.
7. CONVERSION OF SHARES OF THE CONSTITUENT CORPORATIONS. The manner of
converting shares of the Constituent Corporations into shares of the Surviving
Corporation shall be as follows: (A) Each share of the Enterprise Stock issued
and outstanding on the Merger Date shall continue to be one share of Enterprise
Stock. (B) Each share of the Stuart Communications Corporation/The Billiard
Channel Stock issued and outstanding on the Merger Date shall, without any
action by the holders there, be changed and converted into 1 Enterprise Share;
provided, however, that no fractional shares of the Surviving Corporation shall
be issued. In lieu thereof, the Surviving Corporation shall round-up fractional
shares to the next highest number. (C) All outstanding warrants, option and all
other outstanding rights to purchase shares of Stuart Communications Corp./The
Billiard Channel Stock shall be adjusted, pursuant to the terms contained in
such option, warrant or other rights documents, for conversion to warrants,
options or rights to purchase stock of the Surviving Corporation on the same
ratio as provided herein for holders of Stuart Communications Corp./The Billiard
Channel Stock. (D) The number of Enterprise Shares to be issued in exchange for
shares of the Stuart Communications Corp./The Billiard Channel Stock hereunder
shall be proportionately reduced by any shares owned by Stuart Communications
Corp./The Billiard Channel shareholders who shall have timely objected to the
merger (the "Dissenting Shares") in accordance with the provisions of the laws
of Nevada, which objections will be dealt with as provided in those sections.
(E) On the Merger Date, the capital of the Surviving Corporation shall be an
amount equal to the aggregate par value of all of the issued shares of capital
stock of the Surviving Corporation, after giving effect to the terms and
provisions of this Agreement. Each certificate evidencing ownership of shares of
Enterprise Stock issued and outstanding on the Merger Date, or held by the
Surviving Corporation in its treasury shall continue to evidence ownership of
the same number of shares of Enterprise Stock.
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8. EXCHANGE OF CERTIFICATES. As promptly as practicable after the Merger
Date, each holder of an outstanding certificate or certificates theretofore
representing Stuart Communications Corp./ The Billiard Channel Stock (other than
certificates representing Dissenting Shares) shall surrender such certificate(s)
for cancellation to the party designated by the Surviving Corporation to handle
such exchange (the "Exchange Agent"), and shall receive in exchange a
certificate or certificates representing the number of full shares of the
Enterprise Stock into which the shares of Stuart Communications Corp./The
Billiard Channel Stock represented by the certificate or certificates so
surrendered shall have been converted.
8. UNEXCHANGED CERTIFICATES. Until surrendered, each outstanding
certificate that prior to the Merger Date represented Stuart Communications
Corp./The Billiard Channel Stock (other than certificates representing
Dissenting Shares) shall be deemed for all purposes, other than the payment of
dividends or other distributions, to evidence ownership of the number of shares
of Stuart Communications Corp./The Billiard Channel Stock into which it was
converted. No dividend or other distribution payable to holders of the Surviving
Corporation common stock as of any date subsequent to the Merger Date shall be
paid to the holders of outstanding certificates of Stuart Communications
Corp./The Billiard Channel Stock; provided, however, that upon surrender and
exchange of such outstanding certificates (other than certificates representing
Dissenting Shares), there shall be paid to the record holders of the
certificates issued in exchange therefor the amount, without interest thereon,
of dividends and other distributions that would have been payable subsequent to
the Merger Date with respect to the shares of Enterprise Stock represented
thereby.
9. EFFECT OF THE MERGER. On the Merger Date, the separate existence of the
Disappearing Corporation shall cease (except insofar as continued by statute),
and it shall be merged with and into the Surviving Corporation. All the
property, real, personal, and mixed, of each of the Constituent Corporations,
and all debts due to either of them, shall be transferred to and vested in the
Surviving Corporation, without further act or deed. The Surviving Corporation
shall thenceforth be responsible and liable for all the liabilities and
obligations, including liabilities to holders of Dissenting Shares, of each of
the Constituent Corporations, and any claim or judgment against either of the
Constituent Corporations may be enforced against the Surviving Corporation.
10. APPROVAL OF SHAREHOLDERS. This Agreement shall be adopted by the
shareholders of the Constituent Corporations at meetings of such shareholders
called for that purpose or by written consent pursuant to the laws applicable
thereto. There shall be required for the adoption of this Agreement the
affirmative vote of the holders of at least a majority of the holders of all the
shares of the common stock issued and outstanding and entitled to vote for each
of the Constituent Corporations.
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11. REPRESENTATIONS AND WARRANTIES OF ENTERPRISE. Enterprise represents and
warrants to Stuart Communications Corp./The Billiard Channel that:
(A) Corporate Organization and Good Standing. Enterprise is a
corporation duly organized, validly existing, and in good standing under
the laws of the State of Delaware and is qualified to do business as a
foreign corporation in each jurisdiction, if any, in which its property or
business requires such qualification. Enterprise does not have any
subsidiaries nor any direct or indirect interest in any corporation, firm
or unincorporated association.
(B) Capitalization. Enterprise's authorized capital stock consists of
8,000,000 shares of preferred stock, $0.001 par value, of which none of the
shares have been issued, and 100,000,000 shares of common stock, $.001 par
value, of which 7,000,000shares are issued and outstanding.
(C) Issued Stock. All the outstanding shares of the Enterprise Stock
are duly authorized and validly issued, fully paid and non assessable.
(D) Corporate Authority. Enterprise has all requisite corporate power
and authority to own, operate and lease its properties, to carry on its
business as it is now being conducted and to execute, deliver, perform and
conclude the transactions contemplated by this Agreement and all other
agreements and instruments related to this Agreement.
(E) Authorization. Execution of this Agreement has been duly
authorized and approved by Enterprise's board of directors.
(F) Financial Statements. Enterprise's balance sheet and the related
statements of income and retained earnings for and as at the periods ended
August 31, 1999, and December 31, 1999 (the "Enterprise Financial
Statements"), audited by Weinberg & Co., PA (Enterprise's accountant),
fairly present the financial condition of Enterprise as of the dates
thereof and the results of operations for the periods then ended all
conformity with generally accepted accounting principles consistently
applied.
(G) Title. Enterprise has good and marketable title to all the real
property and good and valid title to all other property included in the
Enterprise Financial Statements. Except as set out in the balance sheets
thereof, the properties of Enterprise are not subject to any mortgage,
encumbrance, or lien of any kind except minor encumbrances that do not
materially interfere with the use of the property in the conduct of the
business of Enterprise.
(H) Absence of Undisclosed Liabilities. Except to the extent reflected
or reserved in the Enterprise Financial Statements, Enterprise did not have
at that date any liabilities or obligations (secured, unsecured,
contingent, or otherwise) or any liability or obligation for taxes,
federal, state or foreign.
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(I) No Material Changes. There has been no material adverse change in
the business, properties, or condition, financial or otherwise, of
Enterprise since the date of the Enterprise Financial Statements.
(J) Litigation. There is not, to the knowledge of Enterprise, any
pending, threatened, or existing litigation, bankruptcy, criminal, civil,
or regulatory proceeding or investigation, threatened or contemplated
against Enterprise or against any of its officers.
(K) Contracts. Enterprise is not a party to any contract that is to be
performed in whole or in part at or after the date of this Agreement.
(L) Tax Returns. All federal, state, county, municipal, local, foreign
and other taxes and assessments, including any and all interest, penalties
and additions imposed with respect to such amounts, have been properly
prepared and filed by Enterprise for all years to and including the taxable
year ending December 31, 1998. The provisions for federal and state taxes
reflected in the Enterprise Financial Statements are adequate to cover any
such taxes that may be assessed against Enterprise in respect of its
business and its operations during the periods covered by the Enterprise
Financial Statements and all prior periods.
(M) No Violation. Consummation of the merger will not constitute or
result in a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree,
law, or regulation to which any property of Enterprise is subject or by
which Enterprise is bound.
(N) Reporting Company. Enterprise has filed with the Securities and
Exchange Commission ("SEC") a registration statement on Form 10 which
became effective pursuant to the Securities Exchange Act of 1934 and is a
reporting company pursuant to ss.12 thereunder.
(O) Reporting Company Status. Enterprise has timely filed and is
current on all reports required to be filed by it pursuant to ss.12(g) of
the Securities Exchange Act of 1934, and until the Merger Date, shall
continue to file all such reports when each shall become due.
12. REPRESENTATIONS AND WARRANTIES OF STUART COMMUNICATIONS CORPORATION/THE
BILLIARD CHANNEL. Stuart Communications Corp./The Billiard Channel represents
and warrants to Enterprise that:
(A) Corporate Organization and Good Standing. Stuart Communications
Corporation/The Billiard Channel is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada and is
qualified to do business as a foreign corporation in each jurisdiction, if
any, in which its property or business requires such qualification. Stuart
Communications Corp./The Billiard Channel has no subsidiaries, nor any
direct or indirect interest in any other corporation, firm or other
unincorporated entity.
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(B) Capitalization. Stuart Communications Corporation/The Billiard
Channel's authorized capital stock consists of 75,000,000 shares of common
stock, $ 0.001 par value, of which 6,000,000shares are issued and
outstanding.
(C) Stock Rights. There are no stock grants, options, rights, warrants
or other rights to purchase or obtain shares of Stuart Communications
Corp./The Billiard Channel Stock issued or committed to be issued.
(D) Issued Stock. All the outstanding shares of Stuart Communications
Corp./The Billiard Channel Stock were duly authorized and are validly
issued, fully paid and non-assessable.
(E) Corporate Authority. Stuart Communications Corp./The Billiard
Channel has all requisite corporate power and authority to own, operate and
lease its properties, to carry on its business as it is now being conducted
and to execute, deliver, perform and conclude the transactions contemplated
by this Agreement and all other agreements and instruments related to this
Agreement.
(F) Authorization. Execution of this Agreement has been duly
authorized and approved by Stuart Communications Corp./The Billiard
Channel's board of directors.
(G) Financial Statement. Within thirty (30) days of the Merger Date,
Stuart Communications Corp./The Billiard Channel will have prepared audited
financial statements as at and for the period December 31, 1999 (the
"Stuart Communications Corp./The Billiard Channel Financial Statement").
The Stuart Communications Corp./The Billiard Channel Financial Statement
will fairly present the financial condition of Stuart Communications
Corp./The Billiard Channel as of December 31, 1999 and the results of its
operations for the periods then ended all in conformity with generally
accepted accounting principles consistently applied.
(H) Absence of Undisclosed Liabilities. Except to the extent reflected
or reserved against in Stuart Communications Corp./The Billiard Channel
Financial Statement, Stuart Communications Corp./The Billiard Channel did
not have at that date any liabilities or obligations (secured, unsecured,
contingent, or otherwise) of a nature customarily reflected in a corporate
balance sheet prepared in accordance with generally accepted accounting
principles.
(I) No Material Changes. There has been no material adverse change in
the business, properties, or financial condition of Stuart Communications
Corp./The Billiard Channel since the date of Stuart Communications
Corp./The Billiard Channel Financial Statement.
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(J) Litigation. There is not, to the knowledge of Stuart
Communications Corp./Billiard Channel, any pending, threatened, or existing
litigation, bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against Stuart Communications
Corp./The Billiard Channel or against any of its officers.
(K) Contracts. Stuart Communications Corp./The Billiard Channel is not
a party to any material contract not in the ordinary course of business
that is to be performed in whole or in part at or after the date of this
Agreement.
(L) Title. Stuart Communications Corp./Billiard Channel has good and
marketable title to all the real property and good and valid title to all
other property included in the Stuart Communications Corp./The Billiard
Channel Financial Statement. Except as set out in the balance sheet
thereof, the properties of Stuart Communications Corp./The Billiard Channel
are not subject to any mortgage, encumbrance, or lien of any kind except as
disclosed in the Stuart Communications Corp./The Billiard Channel Financial
Statement.
(M) Tax Returns. All federal, state, county, municipal, local, foreign
and other taxes and assessments, including any and all interest, penalties
and additions imposed with respect to such amounts, have been properly
prepared and filed by Stuart Communications Corp./The Billiard Channel for
all years to and including the taxable year ending December 31, 1999. The
provisions for federal and state taxes reflected in the Stuart
Communications Corp./The Billiard Channel Financial Statements are adequate
to cover any such taxes that may be assessed against Stuart Communications
Corp./The Billiard Channel in respect of its business and its operations
during the periods covered by the Stuart Communications Corp./The Billiard
Channel Financial Statements and all prior periods.
(N) No Violation. Consummation of the merger will not constitute or
result in a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree,
law, or regulation to which any property of Stuart Communications Corp./The
Billiard Channel is subject or by which Stuart Communications Corp./The
Billiard Channel is bound.
13. CONDUCT OF ENTERPRISE PENDING THE MERGER DATE. Enterprise covenants and
agrees with Stuart Communications Corp./The Billiard Channel that between the
date of this Agreement and the Merger Date:
(A) No change will be made in Enterprise's articles of incorporation
or bylaws.
(B) Enterprise will not make any change in its authorized or issued
capital stock, declare or pay any dividend or other distribution or issue,
encumber, purchase, or otherwise acquire any of its capital stock other
than as provided herein.
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(C) Enterprise will submit this Agreement for its shareholders'
approval with a favorable recommendation by its board of directors and will
use its best efforts to obtain the requisite shareholder approval.
(D) Enterprise will use its best efforts to maintain and preserve its
business organization, employee relationships, and goodwill intact, and
will not enter into any material commitment except in the ordinary course
of its business which commitment can be canceled without penalty on not
more than 30 days' notice.
14. CONDUCT OF STUART COMMUNICATIONS CORP./THE BILLIARD CHANNEL PENDING THE
MERGER DATE. Stuart Communications Corp./The Billiard Channel covenants to and
agrees with Enterprise that between the date of this Agreement and the Merger
Date:
(A) No change will be made in Stuart Communications Corp./The Billiard
Channel's certificate of incorporation or bylaws.
(B) Stuart Communications Corp./The Billiard Channel will not make any
change in its authorized or issued capital stock, declare or pay any
dividend or other distribution or issue, encumber, purchase, or otherwise
acquire any of its capital stock otherwise than as provided herein.
(C) Stuart Communications Corp./ The Billiard Channel will submit this
Agreement for its shareholders' approval with a favorable recommendation by
its board of directors and will use its best efforts to obtain the
requisite shareholder approval.
(D) Stuart Communications Corp./The Billiard Channel will use its best
efforts to maintain and preserve its business organization, employee
relationships, and goodwill intact, and will not enter into any material
commitment except in the ordinary course of business.
15. CONDITIONS PRECEDENT TO OBLIGATION OF ENTERPRISE. Enterprise's
obligation to consummate this merger shall be subject to fulfillment on or
before the Merger Date of each of the following conditions, unless waived in
writing by Enterprise:
(A) Stuart Communications Corp./The Billiard Channel's Representations
and Warranties. The representations and warranties of Stuart Communications
Corp./The Billiard Channel set forth herein shall be true and correct at
the Merger Date as though made at and as of that date, except as affected
by transactions contemplated hereby.
(B) Stuart Communications Corp./Billiard Channel's Covenants. Stuart
Communications Corp./The Billiard Channel shall have performed all
covenants required by this Agreement to be performed by it on or before the
Merger Date.
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(C) Shareholder Approval. This Agreement shall have been approved by
the required number of shareholders of Enterprise.
(D) Stuart Communications Corp./The Billiard Channel Financial
Statements. Stuart communications Corp./The Billiard Channel shall have
delivered the Billiard Channel Financial Statements.
(E) Supporting Documents of Stuart Communications Corp./The Billiard
Channel. Com. Stuart communications Corp./The Billiard Channel shall have
delivered to Enterprise supporting documents in form and substance
satisfactory to Enterprise, to the effect that:
(i) Stuart Communications Corp./The Billiard Channel is a
corporation duly organized, validly existing, and in good standing;
(ii) Stuart Communications Corp./The Billiard Channel's
authorized and issued capital stock is as set forth herein; and,
(iii) The execution and consummation of this Agreement have been
duly authorized and approved by Stuart Communications Corp./The
Billiard Channel's board of directors.
16. CONDITIONS PRECEDENT TO OBLIGATION OF STUART COMMUNICATIONS CORP./THE
BILLIARD CHANNEL. Stuart Communications Corp./The Billiard Channel's obligation
to consummate this merger shall be subject to fulfillment on or before the
Merger Date of each of the following conditions, unless waived in writing by
Stuart Communications Corp./The Billiard Channel:
(A) Enterprise's Representations and Warranties. The representations
and warranties of Enterprise set forth herein shall be true and correct at
the Merger Date as though made at and as of that date, except as affected
by transactions contemplated hereby and shall be applicable to the
Enterprise's financial statements referred to in subparagraph (C) hereof.
(B) Enterprise's Covenants. Enterprise shall have performed all
covenants and agreements required by this Agreement to be performed by it
on or before the Merger Date.
(C) Shareholder Approval. This Agreement shall have been approved by
the required number of shareholders of Stuart Communications Corp./The
Billiard Channel. com
(D) Financial Statements; SEC Reports. Enterprises shall have
delivered to Stuart Communications Corp./The Billiard Channel:
(i) the financial statements of Enterprise as at and for the
period ended December 31, 1999, certified by Enterprise's accountants;
and
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(ii) a true copy of each report filed or required to be filed by
Enterprise with the SEC.
(E) Supporting Documents of Enterprise. Enterprise shall have
delivered to Stuart Communications Corp./The Billiard Channel supporting
documents in form and substance satisfactory to Stuart Communications
Corp./The Billiard Channel to the effect that:
(i) Enterprise is a corporation duly organized, validly existing,
and in good standing;
(ii) Enterprise's authorized and issued capital stock is as set
forth herein; and,
(iii) The execution and consummation of this Agreement have been
duly authorized and approved by Enterprise's board of directors.
17. ACCESS. From the date hereof to the Merger Date, Stuart Communications
Corp./The Billiard Channel and Enterprise shall provide each other with such
information and permit each other's officers and representatives such access to
its properties and books and records as the other may from time to time
reasonably request. If the merger is not consummated, all documents received in
connection with this Agreement shall be returned to the party furnishing such
documents, and all information so received shall be treated as confidential.
18. MERGER DATE. The Merger shall become effective (the "Merger Date") on
March 14th, 2000.
19. TIME OF FILINGS. The Certificate of Merger shall be filed with the
Secretary of State of Delaware upon the approval of this Agreement by the
shareholders of the Constituent Corporations and the fulfillment or waiver of
the terms and conditions herein.
20. CLOSING. The transfers and deliveries to be made pursuant to this
Agreement (the "Closing") shall be made by and take place at the offices of the
Exchange Agent or such place agreed upon by Enterprise and Stuart Communications
Corp./The Billiard Channel without requiring the meeting of the parties hereof.
All proceedings to be taken and all documents to be executed at the Closing
shall be deemed to have been taken, delivered and executed simultaneously, and
no proceeding shall be deemed taken nor documents deemed executed or delivered
until all have been taken, delivered and executed.
Any copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission required by this Agreement or any signature required
thereon may be used in lieu of an original writing or transmission or signature
for any and all purposes for which the original could be used, provided that
such copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission or original
signature.
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21. STUART COMMUNICATIONS CORP./THE BILLIARD CHANNEL'S CLOSING DOCUMENTS.
At the Closing, Stuart Communications Corp./The Billiard Channel shall deliver
to the Exchange Agent in satisfactory form, if not already delivered to
Surviving Corporation:
(A) A list of the holders of the shares of Stuart Communications
Corp./The Billiard Channel Stock being exchanged with an itemization of the
number of shares held by each, the address of each holder, and the
aggregate number of shares of Enterprise Stock to be issued to each such
holder.
(B) Evidence of the consent of shareholders of Stuart Communications
Corp./The Billiard Channel to this Agreement.
(C) Certificate of the Secretary of State of Nevada as of a recent
date as to Stuart Communications Corp./The Billiard Channel's good
standing.
(D) Certified copies of the resolutions of Stuart Communications
Corp./The Billiard Channel's board of directors authorizing the execution
of this Agreement and the consummation of the Merger. (E) Secretary's
certificate of incumbency of Stuart Communications Corp./The Billiard
Channel's officers and directors.
(F) Letter from authorized agent of Stuart Communications Corp./The
Billiard Channel to the transfer agent stating that pursuant to the merger
agreement, any stock certificate held by an original shareholder of
Enterprise which has a restrictive legend should have that legend removed
because that shareholder no longer has a controlling interest in the
Surviving Corporation, and as such, its shares are free trading. Any
document as may be specified herein or required to satisfy the conditions,
representations and warranties enumerated elsewhere herein.
22. ENTERPRISE'S CLOSING DOCUMENTS. At the Closing, Enterprise shall
deliver to the Exchange Agent in satisfactory form, if not already delivered to
Stuart Communications Corp./The Billiard Channel:
(A) A list of Enterprise's shareholders of record, including, wherever
available, addresses and telephone numbers.
(B) Evidence of the consent of Enterprise's shareholders to this
Agreement.
(C) Certificate of the Secretary of State of Delaware as of a recent
date as to the good standing of Enterprise.
(D) Certified copies of the resolutions of Enterprise's board of
directors authorizing the execution of this Agreement and the consummation
of the merger.
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(E) Secretary's certificate of incumbency of Enterprise's officers and
directors.
(G) Any document as may be specified herein or required to satisfy the
conditions, representations and warranties enumerated elsewhere herein.
23. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Constituent Corporations set out herein shall survive the
Merger Date.
24. TERMINATION. Unless the Merger Date shall have occurred prior to April
4, 2000, and unless such date has been extended by a writing signed by each
party, this Agreement and the obligations of the parties hereto shall be void,
and each of the parties shall pay for all of the costs and expenses incurred by
such party in the negotiation and consummation of this Agreement and the
transactions herein contemplated.
25. ARBITRATION
(A) Scope and Status. The parties hereby agree that any and all claims
(except only for requests for injunctive or other equitable relief) whether
existing now, in the past or in the future as to which the parties or any
affiliates may be adverse parties, and whether arising out of this
agreement or from any other cause, will be resolved by arbitration before
the American Arbitration Association in the State of California. Any award
in arbitration may be entered in any domestic or foreign court having
jurisdiction over the enforcement of such awards.
(B) Applicable Law. The law applicable to the arbitration and this
agreement shall be that of the State of Delaware, determined without regard
to its provisions which would otherwise apply to a question of conflict of
laws. The arbitrator shall decide any dispute as to the applicable law.
(C) Disclosure and Discovery. The arbitrator may, in its discretion,
allow the parties to make reasonable disclosure and discovery in regard to
any matters which are the subject of the arbitration and to compel
compliance with such disclosure and discovery order. The arbitrator may
order the parties to comply with all or any of the disclosure and discovery
provisions of the Federal Rules of Civil Procedure, as they then exist, as
may be modified by the arbitrator consistent with the desire to simplify
the conduct and minimize the expense of the arbitration. (D) Application of
Governing Law. Regardless of any practices of arbitration to the contrary,
the arbitrator will apply the rules of contract and other law of the
jurisdiction whose law applies to the arbitration so that the decision of
the arbitrator will be, as much as possible, the same as if the dispute had
been determined by a court of competent jurisdiction. (E) Finality and
Fees. Any award or decision by the American Arbitration Association shall
be final, binding and non-appealable except as to errors of law. Each party
to the arbitration shall pay its own costs and counsel fees. (F) Measure of
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Damages. In any adverse action, the parties shall restrict themselves to
claims for compensatory damages and no claims shall be made by any party or
affiliate for lost profits, punitive or multiple damages. (G) No Suit. It
is the intention of the parties and their affiliates that all disputes of
any nature between them, whenever arising, from whatever cause, based on
whatever law, rule or regulation, whether statutory or common law, and
however characterized, be decided by arbitration as provided herein and
that no party or affiliate be required to litigate in any other forum any
disputes or other matters except for requests for injunctive or equitable
relief. This Agreement shall be interpreted in conformance with this stated
intent of the parties and their affiliates.
26. GENERAL PROVISIONS
(A) Further Assurances. From time to time, each party will execute
such additional instruments and take such actions as may be reasonably
required to carry out the intent and purposes of this Agreement.
(B) Waiver. Any failure on the part of either party hereto to comply
with any of its obligations, agreements, or conditions hereunder may be
waived in writing by the party to whom such compliance is owed.
(C) Brokers. Each party agrees to indemnify and hold harmless the
other party against any fee, loss, or expense arising out of claims by
brokers or finders employed or alleged to have been employed by the
indemnifying party; provided, however, that any claim made to a party shall
be promptly conveyed by notice to the other and the party against whom the
claim is made shall have the right to defend the claim and any action
arising therefrom, at its own expense and by counsel selected by it. (D)
Notices. All notices and other communications hereunder shall be in writing
and shall be deemed to have been given if delivered in person or sent by
prepaid first class certified mail, return receipt requested, or recognized
commercial courier service, as follows:
If to Enterprise:
Enterprise, Inc.
860 Via de la Paz, Suite E-1
Pacific Palisades, CA 90272
If to Stuart Communications Corp./The Billiard Channel, to:
Jack Stuart
#104 - 20177 - 54A Ave
Langley, British Columbia V3A 3W6
(E) Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware for
agreements entered into and intended to be carried out entirely in
Delaware.
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27. ASSIGNMENT. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this Agreement
without the written consent of the other party shall be void.
28. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures sent by
facsimile transmission shall be deemed to be evidence of the original execution
thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ENTERPRISE, INC.
/s/ Timothy Hipsher
- --------------------------
By: Timothy Hipsher
President
STUART COMMUNICATIONS CORP./
THE BILLIARD CHANNEL. COM
/s/ Jack Stuart
- --------------------------
By: Jack Stuart
Chairman
EXHIBIT 3.(i)
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
THE BILLIARD CHANNEL INC.
Pursuant to Sections 242 & 245 of the
General Corporation Law of the State of Delaware
FIRST: The name of the corporation is The Billiard Channel
Inc. (hereinafter referred to as the "Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 1013 Centre Road, in the City
of Wilmington, County of New Castle. The name of the registered agent
of the Corporation at that address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under
the General Corporation Law of the State of Delaware (the "Delaware
General Corporation Law").
FOURTH: (a) General. The number of shares of capital
stock that the Corporation is authorized to have at any one time is
one hundred eight million (108,000,000) shares, consisting of: (i) one
hundred million (100,000,000) shares of Common Stock, par value $0.001
per share (the "Common Stock") and (ii)eight million (8,000,000)
shares of Preferred Stock, par value $0.001 per share (the "Preferred
Stock").
(b) Preferred Stock. Authority is hereby expressly vested in
the Board of Directors of the Corporation, subject to the provisions
of this ARTICLE FOURTH and to the limitations prescribed by law, to
authorize the issuance from time to time of one or more series of
Preferred Stock. The authority of the Board of Directors with respect
to each series shall include, but not be limited to, the determination
or fixing of the following by resolution or resolutions adopted by the
affirmative vote of a majority of the total number of the Directors
then in office:
(i) The designation of such series;
(ii) The dividend rate of such series, the conditions and
dates upon which such dividends shall be payable, the relation
which such dividends shall bear to the dividends payable on any
other class or classes or series of the Corporation's capital
stock and whether such dividends shall be cumulative or
non-cumulative;
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(iii) Whether the shares of such series shall be subject to
redemption for cash, property or rights, including securities of
any other corporation, by the Corporation or upon the happening
of a specified event and, if made subject to any such redemption,
the times or events, prices, rates, adjustments and other terms
and conditions of such redemptions;
(iv) The terms and amount of any sinking fund provided for
the purchase or redemption of the shares of such series;
(v) Whether or not the shares of such series shall be
convertible into, or exchangeable for, at the option of either
the holder or the Corporation or upon the happening of a
specified event, shares of any other class or classes or of any
other series of the same class of the Corporation's capital stock
and, if provision be made for conversion or exchange, the times
or events, prices, rates, adjustments and other terms and
conditions of such conversions or exchanges;
(vi) The restrictions, if any, on the issue or reissue of
any additional Preferred Stock;
(vii) The rights of the holders of the shares of such series
upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation;and
(viii) The provisions as to voting, optional and/or other
special rights and preferences, if any, including, without
limitation, the right to elect one or more Directors.
(c) Common Stock. Except as otherwise provided by the Delaware
General Corporation Law or this Certificate of Incorporation (the
"Certificate"),the holders of Common Stock (i) subject to the rights
of holders of any series of Preferred Stock, shall share ratably in
all dividends payable in cash, stock or otherwise and other
distributions, whether in respect of liquidation or dissolution
(voluntary or involuntary) or otherwise and (ii) are subject to all
the powers, rights, privileges, preferences and priorities of any
series of Preferred Stock as provided herein or in any resolution or
resolutions adopted by the Board of Directors pursuant to authority
expressly vested in it by the provisions of Section (b) of this
ARTICLE FOURTH.
(i) The Common Stock shall not be convertible into, or
exchangeable for, shares of any other class or classes or of any
other series of the same class of the Corporation's capital
stock.
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(ii) No holder of Common Stock shall have any preemptive,
subscription, redemption, conversion or sinking fund rights with
respect to the Common Stock, or to any obligations convertible
(directly or indirectly) into stock of the Corporation whether
now or hereafter authorized.
(iii) Except as otherwise provided by the Delaware General
Corporation Law or this Certificate, and subject to the rights of
holders of any series of Preferred Stock, all of the voting power
of the stockholders of the Corporation shall be vested in the
holders of the Common Stock, and each holder of Common Stock
shall have one vote for each share held by such holder on all
matters voted upon by the stockholders of the Corporation.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: In furtherance and not in limitation of the powers
conferred by the Delaware General Corporation Law, the Board of
Directors of the Corporation is expressly authorized to make, alter,
amend, change, add to or repeal the By-lawsof the Corporation by the
affirmative vote of a majority of the total number of Directors then
in office. Any alteration or repeal of the By-laws of the Corporation
by the stockholders of the Corporation shall require the affirmative
vote of at least a majority of the voting power of the then
outstanding shares of capital stock of the Corporation entitled to
vote on such alteration or repeal, subject to ARTICLE NINTH hereof and
applicable provisions of the Corporation's By-laws.
SEVENTH: (a) Stockholder Action. Election of Directors need
not be by written ballot unless the By-laws of the Corporation so
provide. Subject to any rights of holders of any series of Preferred
Stock, from and after the date on which the Common Stock of the
Corporation is registered pursuant to the Exchange Act, (i) any action
required or permitted to be taken by the stockholders of the
Corporation must be effected at an annual or special meeting of
stockholders of the Corporation and may not be effected in lieu
thereof by any consent in writing by such stockholders, (ii) special
meetings of stockholders of the Corporation may be called only by
either the Board of Directors pursuant to a resolution adopted by the
affirmative vote of the majority of the total number of Directors then
in office or by the chief executive officer of the Corporation, and
(iii) advance notice of stockholder nominations of persons for
election to the Board of Directors of the Corporation and of business
to be brought before any annual meeting of the stockholders by the
stockholders of the Corporation shall be given in the manner provided
in the By-laws of the Corporation.
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(b) Number of Directors and Term of Office. Subject to any
rights of holders of any series of Preferred Stock to elect additional
Directors under specified circumstances, the number of Directors which
shall constitute the Board of Directors of the Corporation shall be
fixed from time to time in the manner set forth in the By-laws of the
Corporation.
(c) Removal and Resignation. No Director may be removed
from office without cause and without the affirmative vote of the
holders of a majority of the voting power of the then outstanding
shares of capital stock of the Corporation entitled to vote generally
in the election of Directors voting together as a single class;
provided, however, that if the holders of any class or series of
capital stock are entitled by the provisions of this Certificate (it
being understood that any references to this Certificate shall include
any duly authorized certificate of designation) to elect one or more
Directors, such Director or Directors so elected may be removed
without cause only by the vote of the holders of a majority of the
outstanding shares of that class or series entitled to vote. Any
Director may resign at any time upon written notice to the
Corporation.
(d) Vacancies and Newly Created Directorships. Subject to any
rights of holders of any series of Preferred Stock to fill such newly
created Directorships or vacancies, any newly created Directorships
resulting from any increase in the authorized number of Directors and
any vacancies in the Board of Directors resulting from death,
resignation, disqualification or removal from office for cause shall,
unless otherwise provided by law or by resolution approved by the
affirmative vote of a majority of the total number of Directors then
in office, be filled only by resolution approved by the affirmative
vote of a majority of the total number of Directors then in office.
Any Director so chosen shall hold office until the next election of
the class for which such Director shall have been chosen, and until
his successor shall have been duly elected and qualified, unless he
shall resign, die, become disqualified or be removed for cause.
EIGHTH: (a) Dividends. The Board of Directors shall have
authority from time to time to set apart out of any assets of the
Corporation otherwise available for dividends a reserve or reserves as
working capital or for any other purpose or purposes, and to abolish
or add to any such reserve or reserves from time to time as said Board
may deem to be in the interest of the Corporation; and said Board
shall likewise have power to determine in its discretion, except as
herein otherwise provided, what part of the assets of the Corporation
available for dividends in excess of such reserve or reserves shall be
declared in dividends and paid to the stockholders of the Corporation.
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(b) Issuance of Stock. The shares of all classes of stock of the
Corporation may be issued by the Corporation from time to time for
such consideration as from time to time may be fixed by the Board of
Directors of the Corporation, provided that shares of stock having a
par value shall not be issued for a consideration less than such par
value, as determined by the Board. At any time, or from time to time,
the Corporation may grant rights or options to purchase from the
Corporation any shares of its stock of any class or classes to run for
such period of time, for such consideration, upon such terms and
conditions, and in such form as the Board of Directors may determine.
The Board of Directors shall have authority, as provided by law, to
determine that only a part of the consideration which shall be
received by the Corporation for the shares of its stock which it shall
issue from time to time, shall be capital; provided, however, that, if
all the shares issued shall be shares having a par value, the amount
of the part of such consideration so determined to be capital shall be
equal to the aggregate par value of such shares. The excess, if any,
at any time, of the total net assets of the Corporation over the
amount so determined to be capital, as aforesaid, shall be surplus.
All classes of stock of the Corporation shall be and remain at all
times nonassessable.
The Board of Directors is hereby expressly authorized, in its
discretion, in connection with the issuance of any obligations or
stock of the Corporation (but without intending hereby to limit its
general power so to do in other cases), to grant rights or options to
purchase stock of the Corporation of any class upon such terms and
during such period as the Board of Directors shall determine, and to
cause such rights to be evidenced by such warrants or other
instruments as it may deem advisable.
(c) Inspection of Books and Records. The Board of Directors shall
have power from time to time to determine to what extent and at what
times and places and under what conditions and regulations the
accounts and books of the Corporation, or any of them, shall be open
to the inspection of the stockholders;and no stockholder shall have
any right to inspect any account or book or document of the
Corporation, except as conferred by the laws of the State of Delaware,
unless and until authorized so to do by resolution of the Board of
Directors or of the stockholders of the Corporation.
(d) Location of Meetings, Books and Records. Except as otherwise
provided in the By-laws, the stockholders of the Corporation and the
Board of Directors may hold their meetings and have an office or
offices outside of the State of Delaware and, subject to the
provisions of the laws of said State, may keep the books of the
Corporation outside of said State at such places as may, from time to
time, be designated by the Board of Directors.
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NINTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate in the
manner now or hereinafter prescribed herein and by the laws of the
State of Delaware, and all rights conferred upon stockholders herein
are granted subject to this reservation. Notwithstanding anything
contained in this Certificate to the contrary, Sections (a), (b) and
(c) of ARTICLE FOURTH, ARTICLE TENTH, ARTICLE SEVENTH, and this
ARTICLE NINTH of this Certificate shall not be altered, amended or
repealed and no provision inconsistent therewith shall be adopted
without the affirmative vote of the holders of at least a majority of
the voting power of the then outstanding shares of capital stock of
the Corporation entitled to vote on such alteration, amendment or
repeal, voting together as a single class.
TENTH: (a) Limitation of Liability.
(i) To the fullest extent permitted by the Delaware General
Corporation Law as it now exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto), and except
as otherwise provided in the Corporation's By-laws, no Director
of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages arising from a breach of
fiduciary duty owed to the Corporation or its stockholders.
(ii) Any repeal or modification of the foregoing paragraph
by the stockholders of the Corporation shall not adversely affect
any right or protection of a Director of the Corporation existing
at the time of such repeal or modification.
(b) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved
(including involvement as a witness) in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(a "proceeding"), by reason of the fact that he or she is or was a
Director or officer of the Corporation or, while a Director or officer
of the Corporation, is or was serving at the request of the
Corporation as a Director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a Director or officer or in any
other capacity while serving as a Director or officer, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists
or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior thereto),
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against all expense, liability and loss (including attorneys' fees,
judgments, fines, excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in
connection therewith and such indemnification shall continue as to an
indemnitee who has ceased to be a Director, officer, employee or agent
and shall inure to the benefit of the indemnitee's heirs, executors
and administrators; provided, however,that, except as provided in
Section (c) of this ARTICLE TENTH with respect to proceedings to
enforce rights to indemnification, the Corporation shall indemnify any
such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation. The right
to indemnification conferred in this Section (b) of this ARTICLE TENTH
shall be a contract right and shall include the obligation of the
Corporation to pay the expenses incurred in defending any such
proceeding in advance of its final disposition (an "advance of
expenses");provided, however, that, if and to the extent that the
Delaware General Corporation Law requires, an advance of expenses
incurred by an indemnitee in his or her capacity as a Director or
officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, service to
an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking (an "undertaking"), by or on behalf of
such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there
is no further right to appeal (a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under
this Section (b) or otherwise. The Corporation may, by action of its
Board of Directors, provide indemnification to employees and agents of
the Corporation with the same or lesser scope and effect as the
foregoing indemnification of Directors and officers.
(c) Procedure for Indemnification. Any indemnification of a
Director or officer of the Corporation or advance of expenses under
Section (b) of this ARTICLE TENTH shall be made promptly, and in any
event within forty-five (45) days (or, in the case of an advance of
expenses, twenty (20) days), upon the written request of the Director
or officer. If a determination by the Corporation that the Director or
officer is entitled to indemnification pursuant to this ARTICLE TENTH
is required, and the Corporation fails to respond within sixty (60)
days to a written request for indemnity, the Corporation shall be
deemed to have approved the request. If the Corporation denies a
written request for indemnification or advance of expenses, in whole
or in part, or if payment in full pursuant to such request is not made
within forty-five (45) days (or, in the case of an advance of
expenses, twenty (20) days), the right to indemnification or advances
as granted by this ARTICLE TENTH shall be enforceable by the Director
or officer in any court of competent jurisdiction. Such person's costs
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and expenses incurred in connection with successfully establishing his
or her right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation. It shall be a
defense to any such action (other than an action brought to enforce a
claim for the advance of expenses where the undertaking required
pursuant to Section (b) of this ARTICLE TENTH, if any, has been
tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant
for the amount claimed, but the burden of such defense shall be on the
Corporation. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel or its stockholders) to
have made a determination prior to the commencement of such action
that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth
in the Delaware General Corporation Law,nor an actual determination by
the Corporation (including its Board of Directors,independent legal
counsel or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable
standard of conduct. The procedure for indemnification of other
employees and agents for whom indemnification is provided pursuant to
Section (b) of this ARTICLE TENTH shall be the same procedure set
forth in this Section (c) for Directors or officers, unless otherwise
set forth in the action of the Board of Directors providing
indemnification for such employee or agent.
(d) Insurance. The Corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was
a Director, officer, employee or agent of the Corporation or was
serving at the request of the Corporation as a Director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss
asserted against him or her and incurred by him or her in any such
capacity, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under
the Delaware General Corporation Law.
(e) Service for Subsidiaries. Any person serving as a Director,
officer, employee or agent of another corporation, partnership,
limited liability company, joint venture or other enterprise, at least
50% of whose equity interests are owned by the Corporation (a
"subsidiary" for this ARTICLE TENTH) shall be conclusively presumed to
be serving in such capacity at the request of the Corporation.
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(f) Reliance. Persons who after the date of the adoption of this
provision become or remain Directors or officers of the Corporation or
who, while a Director or officer of the Corporation, become or remain
a Director, officer, employee or agent of a subsidiary, shall be
conclusively presumed to have relied on the rights to indemnity,
advance of expenses and other rights contained in this ARTICLE TENTH
in entering into or continuing such service. The rights to
indemnification and to the advance of expenses conferred in this
ARTICLE TENTH shall apply to claims made against an indemnitee arising
out of acts or omissions which occurred or occur both prior and
subsequent to the adoption hereof.
(g) Non-Exclusivity of Rights. The rights to indemnification and
to the advance of expenses conferred in this ARTICLE TENTH shall not
be exclusive of any other right which any person may have or hereafter
acquire under this Certificate or under any statute, by-law,
agreement, vote of stockholders or disinterested Directors or
otherwise.
(h) Merger or Consolidation. For purposes of this ARTICLE TENTH,
references to the "Corporation" shall include, in addition to the
resulting Corporation, any constituent Corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power
and authority to indemnify its Directors, officers and employees or
agents, so that any person who is or was a Director, officer, employee
or agent of such constituent Corporation, or is or was serving at the
request of such constituent Corporation as a Director, officer,
employee or agent of another Corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this
ARTICLE TENTH with respect to the resulting or surviving Corporation
as he or she would have with respect to such constituent Corporation
if its separate existence had continued.
ELEVENTH: The Corporation expressly elects not to be governed
by Section 203 of the Delaware General Corporation Law with respect to
business combinations with interested stockholders.
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